[Free translation]
The Federal Supreme Court began to judge, in yesterday's session (09/03/2017), an important resource that will impact directly and significantly on all companies that market products. It is discussed whether or not ICMS should compose the basis for calculating contributions to PIS and COFINS (RE 574.706).
The trial was suspended and will be resumed next Wednesday, the 15th.
The partial score is 5 to 3 favorable to taxpayers, with the prevailing understanding that it is unconstitutional to include the ICMS in the calculation base of PIS and COFINS, since the tax is not confused with the concept of revenue / billing. In other words, it is not valid to require PIS and COFINS on the amounts received by the company as ICMS in the sale of its products.
Only the Ministers Gilmar Mendes and Celso de Mello remain. If they maintain the position they have already adopted in previous judgments on the matter, the taxpayers will be victorious (6 x 4).
It is important to note that RE 574,706 is being judged under the regime of general repercussion. This means that what is decided will have binding effect (mandatory) in the judgment of the other proceedings on the matter, both on those already in process, and on those who will come to trial.
Due to the significant impact on the public coffers that the favorable taxpayer judgment will bring, it is likely that at the next Wednesday session, with the closing of the appeal, Ministers will modulate their effects, determining that the ICMS from then on (for the future), with the right to repeat the indébito of the amounts collected in the past exclusively to taxpayers who already have a lawsuit filed.
Therefore, it is strongly recommended that taxpayers who have not yet filed a court order should do so by March 14, in order to safeguard their right to recover amounts unduly paid in the past. Lauffer Advocacia has worked and defended this longstanding theme and is ready to meet your demand.
